Social Media in the Workplace – Good, Bad or Indifferent?

Why is this relevant for retailers?

The increasingly widespread use of social media such as Facebook and Twitter by employees, both in and out of the workplace, raises a number of issues for employers concerned with protecting their business' interests.

There are a number of risks for employers associated with the use by employees of social media. These include disclosure of confidential information, reputational damage, infringement of intellectual property rights, liability for discriminatory or defamatory comments, and decreased productivity during working hours, all of which can have serious, and often costly, ramifications for the employer.

With this in mind, employers are increasingly relying on evidence found on social media sites when disciplining employees. As such it may be helpful for an employer to deal with issues such as reputational damage and disclosure of confidential information in its disciplinary policy so that the rules are clearly set out for the employees to see.

Further, it is vital that employers protect themselves by putting in place a coherent and appropriate Social Media Policy. It will be important to strike a balance between the employees' freedom to use social media appropriately and the employer's desire to protect their business interests. In particular, employers should ensure that their policy does not breach an employee's rights to privacy and freedom of expression.

What view do the Tribunals take on these issues?

Recent caselaw provides a useful indication of the approach that tribunals take to the use of social media.

In Gosden v Lifeline, the tribunal held that the claimant had been dismissed fairly for sending an offensive email from his personal computer to a former colleague's personal computer on the grounds that he acted in a way which could damage the employer's reputation.

The justification for this decision was that the claimant had intended the email to be passed on and therefore could not argue that privacy attached to it.

Similarly, in Preece v JD Wetherspoons, the tribunal held that the claimant had been fairly dismissed for gross misconduct after using offensive language on Facebook about her customers in breach of the employer's email and internet policy.

Although the tribunal considered it might have given the claimant a final written warning instead, it found that the employer's actions were justified in view of the risk of damage to its reputation.  Employers in the retail sector should take heed of this case in particular.

What is Our Conclusion?

These cases act as a warning to employees that their use of social media outside of work may not necessarily be private and could jeopardise their employment.

Furthermore, employees should be well aware that more and more employers are using social media sites during recruitment processes.  Comments on Facebook about hating your current employer will not be well received by a new prospective new one!

Any social media policy will need to be carefully drafted to ensure it meets the employer's business needs and reflects its approach to social technologies, whilst not infringing the employees' human rights. 

For more information, please contact Tom Stenner-Evans on tom.stenner-evans@michelmores.com or 01392 688 688.  Alternatively, you can follow him on Twitter at @TomStennerEvans and @MichEmployment